Odongo v Radar Security Limited (Employment and Labour Relations Petition E033 of 2020) [2023] KEELRC 2909 (KLR)
The bottom line
#A Kenyan court ruled a security guard's dismissal was unfair because her employer proved neither the reason nor a fair process, awarding compensation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petitioner's Constitutional fundamental rights and freedoms were infringed by the Respondent
- 2.Whether the Petitioner's employment was unfairly terminated
- 3.Whether the Petitioner is entitled to the reliefs sought
Key legal issues
#Whether constitutional fundamental rights were infringed
The Petitioner failed to plead with particularity the infringed rights; the reliefs sought were available under the Employment Act, so the constitutional claim failed except perhaps the defaced certificates, which did not amount to an unfair labour practice preventing her from securing employment.
The court applied the Anarita Karimi/Mumo Matemu standard of pleading constitutional violations with particularity, adopting Judicial Service Commission v Gladys Boss Shollei. It found the prayers were all available under section 49 of the Employment Act, rendering the petition form unnecessary. The withholding of certificates was remedied by their release and the defacement did not reasonably prevent her securing other employment.
Whether the employment was unfairly terminated
Termination was substantively and procedurally flawed: the Respondent failed to prove the alleged reasons (absconding or COVID-19 financial distress) and did not accord the Petitioner a hearing under section 41.
The Respondent alleged the Petitioner never returned from leave and blamed COVID-19, but produced no financial evidence. The court held the employer should have communicated about her whereabouts and, if genuinely affected by COVID-19, followed section 40 redundancy procedure. No hearing was given under section 41; hence termination was unfair under section 45. Reason given of COVID-19 came after the verbal termination.
Entitlement to reliefs
Declaration of constitutional infringement and damages refused; reinstatement dropped; one month's notice pay and ten months' compensation under section 49 awarded, plus certificate of service and costs.
Having found unfair termination, the court exercised discretion under section 49 of the Employment Act, considering length of service (2009 to 2020), absence of proved misconduct, and that the relationship had broken down. Ten months' salary was held reasonable compensation; notice pay awarded as she was terminated without notice.
Legal principles established
#- An employer must prove the reason for termination, that it is valid and fair, failing which the termination is deemed unfair under section 45 of the Employment Act
- An employer alleging financial distress (e.g. COVID-19) must prove it with financial documents; if genuinely affected it should have followed the redundancy procedure under section 40
- Reliefs available under section 49 of the Employment Act need not be brought as a constitutional petition; a petitioner must plead with particularity the infringed rights
Court orders
#- 1.One month's salary in lieu of notice of Kshs. 16,783
- 2.Ten months' salary as compensation for unfair termination of Kshs. 167,830
- 3.Costs of the suit to the Petitioner
- 4.The Respondent to issue the Petitioner with a certificate of service
- 5.Items (i) and (ii) shall where applicable attract statutory deductions but shall accrue interest at Court rates from the date of judgment until payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 20, 21, 23, 24, 29, 36(1), 40(1), 41, 165(3)(b) and 258 of the Constitution; Employment Act
Relief refused
#Declaration of infringement of constitutional rights and damages therefor
No specific clarity on infringement of constitutional rights; reliefs available under section 49 Employment Act without a constitutional petition
Reinstatement
Prayer dropped as the Respondent released her academic documents and testimonials
Costs of replacement of testimonials
Not granted in the final orders
Costs
Costs of the suit awarded to the Petitioner
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the Court awards the petitioner as follows
The respondent shall further issues the petitioner with a certificate of service.
Items (i) and (ii) shall where applicable attract statutory deductions but shall accrue interest at Court rates from the date of judgment until payment in full.
the Petitioner's termination was substantively and procedurally fiawed hence unfair under section 45 of the Employment Act.
It was therefore not necessary to present the claim as a constitutional petition.
Issues in the judgment
#Paragraph numbering in the judgment is duplicated and out of sequence (multiple paragraphs numbered 15, 16 and 17, and issue (c) contains a typographical duplication)
Constitutional article pleaded appears misprinted
The judgment does not state the petition case number on its face
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odongo v Radar Security Limited (Employment and Labour Relations Petition E033 of 2020) [2023] KEELRC 2909 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2909/eng@2023-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.